Letters of Warning

The Or Commission in Israel

After 12 long months of hearings and the appearance of 349 witnesses, a panel of Israeli judges has offered the first insight into its conclusions about the deaths of 13 Palestinian citizens at the hands of the country's police force in October 2000. Justice Theodor Or, head of the commission tasked with investigating the deaths, surprised most legal observers by issuing letters of warning to former prime minister Ehud Barak and his internal security minister, Shlomo Ben Ami, who was also foreign minister at the time. Barak, Ben Ami and 12 others, who were urged to hire a lawyer and prepare for a second round of investigations, can expect to be judged harshly in the commission of inquiry's final report. In effect, each is being warned now to prepare his defense against the accusations made in the letter.

The next stage in mid-May is expected to look like a series of trials: witnesses will be cross-examined, possibly by hostile lawyers. After that the inquiry will issue a final report in which the three judges will attribute levels of responsibility for the events that led to the deaths and may in some cases recommend criminal prosecutions. Only those who have been warned can be criticized in the final report.

This limitation of the inquiry's scope means that families of the 13 dead victims, and the hundreds of Palestinian citizens injured by indiscriminate police gunfire, are now unlikely to find out who pulled the trigger. Since the Justice Ministry's internal affairs unit, Mahash, largely abandoned its own investigations because it said they would interfere with the commission's work, the families have apparently reached a dead end.

Net of Warnings

The first round of hearings has established that the police entered Arab towns and villages in the Galilee in the first week of October 2000 to break up a general strike. The strike was called by the Arab leadership after six Palestinians were killed protesting Ariel Sharon's fateful visit to the Haram al-Sharif on September 28. Police fired tear gas, rubber bullets and live ammunition at youths throwing stones and burning tires. As the demonstrations and stone-throwing intensified, the police brought an anti-terror sniper squad armed with high-caliber ammunition to two towns, Nazareth and Umm al-Fahm, where a total of six people died.

Justice Or's net of warnings trawled deepest among the police, catching nine, including former national police chief Yehuda Wilk and Alik Ron, former commander of the northern force. Or faulted Wilk and Ron, both now retired, for 11 decisions, most relating to the use of snipers and resorting to rubber bullets and live ammunition as a first line of defense. Further investigation of the actions of the two highest-ranking politicians involved—Barak and Ben Ami—may shed light on why the police reacted so violently to the protests. In this regard, the first round of hearings were disappointing. Barak in particular was given an easy ride by the panel during his questioning in November last year.

Finally, Justice Or issued letters of warning to three Arab politicians, blaming them for inciting the demonstrations that led to the deaths. One was Azmi Bishara of the National Democratic Assembly, a Member of Knesset who was stripped of his parliamentary immunity and is currently on trial for sedition over speeches he made in Israel and Syria. The other two were leaders of the two branches of the Islamic Movement: MK Abd al-Malik Dahamsheh and Sheikh Raed Salah, who heads the militant and extra-parliamentary northern wing.

"Inciters and Organizers"

The decision to "blame the victims," as some critics described the accusations against the Arab leadership, seemed a foregone conclusion. In November 2000, when Barak established the commission of inquiry—upgrading it from a less powerful clarification committee—he included in its mandate an examination of the "conduct of inciters and organizers." At the time Arab lawyers objected that the terms of reference presumed that incitement took place before the investigation had begun.

Adalah, the legal center for the Palestinian minority in Israel which is representing the three Arab politicians, is preparing to argue with the inquiry that these last warnings are illegal and should be rescinded. Adalah points out that all previous commissions of inquiry have limited their judgments to the executive arm of the state rather than the public or its representatives. It fears that the warnings may be a prelude to attempts by the government to outlaw Bishara's party and the Islamic Movement.

As evidence for these arguments, Adalah lawyer Marwan Dallal cites the questions posed by Justice Or to the Arab leaders, most of whom appeared towards the end of the first round of hearings in December and January. "They were asked about their political agendas," said Dallal. "No other politicians before the inquiry faced these kind of questions. For example, Bishara was asked questions like 'Aren't you the most nationalist politician among the Israeli Arabs?' even though this had no obvious relevance to investigation of the events of October 2000. It was also suggested that his party's platform concerning Israel becoming a state of all its citizens had contributed to the tension." Sheikh Raed Salah was asked similar questions about his "al-Aqsa is in danger" campaign, Dallal added. "We know that Jews rioted across the country in that first week of October, but there are no Jewish politicians being investigated for incitement."

Charged Atmosphere

Justice Or's inquiry was intended to uncover the mistakes that occurred in the handling of the October demonstrations—a largely administrative-strategic question. But the atmosphere surrounding the inquiry has been politically charged, at times resembling a post-mortem on the terminal state of relations between Arabs and Jews within Israel. Recent Palestinian suicide bombings and Israel's major offensive in the Occupied Territories have only aggravated Jewish perceptions of the commission's work as dangerous meddling.

The decision to criticize the Arab leadership is doubtless part of an attempt by the three judges to appear even-handed. If Jews (in the form of the government and police command) will be reprimanded, so must the Arabs (in the shape of their political leadership). But this artificial "balance"—between the aggressor and the victim—reopens the wounds the Or commission is trying to heal. The futility of the "balanced" approach was underscored the day after the commission issued its warnings on February 27. Likud member Uzi Landau, the current internal security minister, declared that the government would not be bound by the inquiry's conclusions. In a swipe at the entire Israeli judicial system, under attack from right-wing and religious groups who see it as a bastion of leftism and secularism, Landau added: "The legal system has become increasingly involved in managing what is happening in the country, and that which is under the authority of the government. This needs to be stopped."

Throughout the hearings, Landau has been outspoken in his support for the police, even when the evidence has painted a picture of a police force infected with racism and guided by a brutal disregard for Arab life. Similarly, he appears concerned that the commission's work should not set any political precedents for the treatment of Israel's Palestinian citizens. Justice Or's warnings are a challenge, both to the infallibility of the police and to politicians' attitudes toward the Arab minority.

Finding Fault With Barak

The commission found five faults in Barak's behavior during the October 2000 crisis. "In his capacity as prime minister, he was not sufficiently aware of the changes taking place in the Arab community in Israel during his time in office," the findings read. "These changes created a substantial possibility that riots would break out on a large scale." Here the commission refers to the frustration generated by Barak's repeated refusal to meet the Arab leadership after the election of 1999, in which his victory was largely secured by the almost unanimous support of the Arab population. Barak failed to meet anyone from the leadership until October 3, after three days of violence in the Galilee. The warning letter also reveals that Barak declined a meeting "despite an assessment by intelligence officials, given to him at his own request, that such a meeting, if held quickly, could significantly calm the situation."

Barak is also faulted for a decision taken on October 2: "He ordered the police to use every means to keep the roads open, with special reference to the Wadi Ara road [the main route into the Galilee, which passes by the town of Umm al-Fahm], thus ignoring the many casualties, including fatalities, that could have, and should have, been anticipated as a result of the order." Further, Adalah lawyers have brought to Justice Or's attention a radio interview Barak gave on the morning before the majority of deaths occurred in the Galilee. In it the former prime minister said that he had met with police commanders the night before and given them the "green light" to take whatever action was necessary to keep the roads open and preserve the rule of law.

But the commission's letters of warning make no link between Alik Ron's decision to use a unit of snipers on October 2 to keep the Wadi Ara road open and the decision taken by Barak and Ben Ami three days earlier to deploy the same squad at the Haram al-Sharif. The snipers were responsible for some of the Palestinian deaths there. If, as Barak and Ben Ami contend, they delegated to Galilee police commanders the decisions on when and how to keep the Wadi Ara road open, cannot Ron reasonably defend his decision to use snipers on the grounds that he simply followed the example set by Barak and Ben Ami in Jerusalem? This point appears to have been ignored by the panel.

Time to Ponder?

While Justice Or has been doling out blame for the Arab protesters' deaths, he has himself been accused of dragging his feet. Former military intelligence head Shlomo Gazit, an implacable foe of the Or proceedings, observed in the Jerusalem Post: "The tremendous tension that has prevailed since the events of 'black October' threatens to burst forth. Enough tension and explosives are out there for one spark to cause a huge blast." Comparing the Or commission with the commission of inquiry under Shimon Agranat into the failures surrounding the 1973 Yom Kippur war, he added: "The [Agranat] commission understood it could not put off its conclusions ad infinitum. After just over four months of investigation it issued its recommendations. It delayed the full and detailed report to a much later date."

The Or commission, by contrast, appears to be in no hurry to complete its work. Are the judges merely diligent in establishing the facts? One wonders whether Justice Or hopes to put off indefinitely the day he must draw his final conclusions—or at least delay them until the divisions generated in Israel by the Palestinian uprising have faded. But the protests of October 2000 were not simply an expression of conflicting loyalties experienced by Palestinian citizens faced by the violence inflicted on their ethnic kin in the West Bank and Gaza. Those citizens' grievances against the state, and political conflict phrased in ethnic terms, long predate the intifada. Given the increasing ethnic polarization of Israeli society—and the ever louder voices on the right in favor of the expulsion of the Arab minority—Justice Or may not have as much time to ponder as he thinks.